Copyright & Publishing: Fair Use
Fair Use Explained
Fair use is a statutory exception to the copyright holder's bundle of exclusive rights. It allows for the unlicensed (that is, without permission or payment of royalty) use of a copyrighted work where the balance of several factors weighs in favor of such use. Four of these factors are specifically enumerated in the statute. Application of fair use requires a factual analysis of these four factors as applied to the facts of the proposed use. Although no single factor is determinative, recent court decisions reveal that transformative use is an important consideration as is the potential harm to the market for the copyrighted work.
The four statutory factors of fair use are:
- The purpose and character of the proposed use
- The nature of the work being used
- The amount of the work being used
- The effect of the use upon the market for the copyrighted work
Several factual inquiries drive analysis of each of the four factors. The resources in this Toolkit can help libraries understand and conduct these inquiries. Several libraries have also created excellent guides to understanding and applying the four factors:
- University of Minnesota Libraries - Understanding Fair Use
- University of Pittsburgh - What is Fair Use
- Columbia University Libraries - Fair Use
- Boston College Libraries - Fair Use Factors
- Harvard Library Office of Scholarly Communication - Fair Use Guide
Fair Use Expllained by ACRL is licensed under CC BY NO SA
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Fair Use Tools
- U.S. Copyright Office Fair Use IndexThe Fair Use Index tracks a variety of judicial decisions to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair. The decisions span multiple federal jurisdictions, including the U.S. Supreme Court, circuit courts of appeal, and district courts. For each decision, there is a brief summary of the facts, the relevant question(s) presented, and the court’s determination as to whether the contested use was fair.
- Code of Best Practices in Fair Use for Academic and Research LibrariesThis Code of Best Practices identifies eight scenarios identified by the academic and research library community where fair use principles commonly apply and steps libraries should take to help assure fair use. Additional Codes of Best Practices in Fair Use for other communities can be found at http://archive.cmsimpact.org/fair-use/best-practices
- ARL "The Good News about Library Fair Use" InfographicInfographic about fair use and libraries, based upon the Code of Best Practices.
- Fair Use EvaluatorA tool developed by the ALA Copyright Advisory Network to assist libraries in evaluating whether a proposed use is fair.
- Fair Use QuizThe quiz, created by MIT Libraries, is designed to help users better understand the core concepts of copyright law’s “fair use” provision.
- Fair Use ChecklistFair use checklists exist in several variations used by libraries. This version was created by the Copyright Advisory Office at Columbia University.
- Thinking Through Fair UseInteractive fair use checklist, from the University of Minnesota, to assist with fair use analysis.
- Fair Use WeekFair Use Week is an annual celebration held the last week of February. Various resources, including handouts, images, and a calendar of events by participating institutions are available at the Fair Use Week website.
Fair Use Tools by ACRL is licensed under CC BY NO SA
Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
Presentations on Fair Use
- Fair Use Factors: Their History and Application (Webinar 2016) Webinar sponsored by ACRL and presented by Ana Enriquez during on the history and application of the four factors of fair use.
- Mitigating Risk at the Front Lines: Copyright First Responders Program (Webinar 2016) In this webinar for ASERL, Kyle Courtney of Harvard University's Office for Scholarly Communication describes how issues of fair use and open access, MOOCs and repositories, and the push to digitize mean that library patrons, faculty, students, staff, need more guidance on copyright matters than ever. These questions are arriving at the library with greater frequency, and Kyle believes a modern, 21st century library should be equipped to answer such questions.
- Four Factors of Fair Use (Presentation 2014) Brief introduction to the four factors of fair use from the Standard Center for Internet & Society
- Common Myths about Copyright and Fair Use (Presentation 2014) Brief presentation from Stanford Center for Internet & Society on common myths about fair use.
- The Key to Fair Use: Transformation (Presentation 2014) Brief presentation from Stanford Center of Internet & Society on the importance of transformative fair use.
- Fair Use without Fear (Webinar, 2014) The third in a series of webinars focusing on open access, copyright, and fair use. Co-sponsored by ASERL, Boston Library Consortium (BLC), Greater Western Library Alliance (GWLA), Triangle Research Libraries Network (TRLN), and Washington Research Library Consortium (WRLC). The lead presenters are Peter Jaszi and Brandon Butler of American University's Washington College of Law. Mark Jacobs Executive Director of the Washington Research Library Consortium, introduces the session. In this session, Jaszi and Butler discuss how pedagogy and scholarship grow and change with technology, that more and more of what university professors do implicates copyright. More than any other, fair use is the legal doctrine that empowers members of the academy to do their jobs without having to ask or pay for permission. The presenters describe the growth of the fair use doctrine and the ways that communities, including scholars, are taking advantage of their fair use rights to get things done.
- Follow the Four Factors of Fair Use (Presentation 2014) A video from the Ohio State University Copyright Resource Center on the four factors of fair use and how they apply.
- Copyright and Fair Use 101 (Webinar 2013) The first in a series of webinars focusing on open access, copyright, and fair use. Co-sponsored by ASERL (Association of South East Research Libraries), Boston Library Consortium (BLC), California Digital Library (CDL), CIC Center for Library Initiatives, Greater Western Library Alliance (GWLA), Triangle Research Libraries Network (TRLN), and Washington Research Library Consortium (WRLC). Speakers are Christine Fruin (University of Florida Libraries) and Anne Gilliland (UNC Chapel Hill Libaries). The speakers describe the basic principles of copyright and fair use, the "four factors of fair use", and recent court cases dealing with these issues in academic libraries.
- Code of Best Practices in Fair Use for Academic and Research Libraries (Webinar 2012) Rollout video by ARL introducing the Code of Best Practices, discussing the methodology for creating the Code and the application of the eight scenarios.
Presentations on Fair Use by ACRL is licensed under CC BY NO SA
Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.